2023 Preview of Telemental Health Laws & Behavioral Telehealth Regulations

After continuing COVID-related telemental health laws and behavioral telehealth regulations in 2022, many key issues for 2023 are already decided. Both federal and state legislative groups have focused heavily on passing behavioral telehealth regulations to be enacted in 2023 and are poised to extend in subsequent years. First, the Public Health Emergency (PHE) is likely to be extended for three months in January, bringing today’s best predictions for the end of the PHE to April 2023. In addition, the Consolidated Appropriations Act of 2022 ensures a 151-day extension period beyond the end of the PHE to allow for a transition before many of the policies outlined in the COVID-19 PHE are currently set to expire.

Numerous groups are urging Congress to take more extensive and decisive action. Concerns center on what to expect regarding telehealth benefits and repercussions leading to interruptions to the continuum of care in the absence of the PHE. The National Association of Medicaid Directors (NAMD) submitted a letter to congressional leaders stating that the lack of clarity about another extension “exacerbates the uncertainties for state planning to resume normal Medicaid operations.” A consumer poll by America’s Health Insurance Plans reported a strong consumer preference for telehealth to remain available, with 73% of commercially-insured telehealth users indicating that Congress should make telehealth provisions permanent. 

This article below will review several key elemental health and behavioral telehealth legislative issues at the federal level, the individual state level, and within several key behavioral professions.

US Federal Behavioral Telehealth Regulations

Most notable for behavioral professionals is that telephone and video telehealth reimbursement has been permanently approved, despite continued confusion about telephone billing codes and modifiers. Professionals focused on expanding their telehealth services through Medicare will also be delighted to see the Centers for Medicare and Medicaid Services (CMS) final 2023 Medicare Physician Fee Schedule (PFS). Released in November every year for implementation on January 1 of the following year, the PHS is important because it sets a precedent for private payors to make subsequent policy decisions at the state level.

Key Medicare Behavioral Telehealth Regulations

For 2023, some of the more far-reaching behavioral telehealth policy changes for Medicare reimbursement include the following:

• Most notable for behavioral professionals is that telephone and video telehealth reimbursement has been permanently approved, despite continued confusion about telephone billing codes and modifiers. Note, however, Medicare will reimburse when the patient is at his/her home if the provider has furnished an item or service in-person, without the use of telehealth, for which Medicare payment was made (or would have been made if the patient were entitled to, or enrolled for, Medicare benefits at the time the item or service is furnished) within 6 months before the initial telehealth service. With regard to the above, the effective date of the telemental health six-month rule will be postponed until 151 days (five months) after the public health emergency (PHE) ends.

CMS is also finalizing the proposal to allow Opioid Treatment Programs (OTPs) intake add-on code to be furnished via two-way audio-video communications technology.

• OTPs can be reimbursed when billed for the initiation of treatment with buprenorphine to the extent that the use of audio-video telecommunications technology to initiate treatment with buprenorphine is authorized by the Drug Enforcement Administration (DEA) and Substance Abuse and Mental Health Services Administration (SAMHSA) at the time the service is furnished.
• CMS is also finalizing the proposal to permit audio-only communication technology to initiate treatment with buprenorphine in cases where audio-video technology is unavailable to the beneficiary and all other applicable requirements are met.
• CMS will allow periodic assessments for OTPs to be furnished audio-only when video is unavailable for the duration of CY 2023, to the extent that it is authorized by SAMSHA and DEA at the time the service is furnished.
• Concern continues over the ramifications of halting prescribing controlled substances via telehealth amid an ongoing national emergency for opioids. Concern for the lack of action taken by the Drug Enforcement Agency was most recently addressed by the American Hospital Association, which sent yet another letter to the DEA.
• Five new permanent telehealth codes have been approved for prolonged E/M services and chronic pain management.

Marriage and Family Therapists and Licensed Professional Counselors are positioned to be reimbursed for Medicare services in specific circumstances outlined below.

• The 12/22/22 Senate passage of the 1.7 trillion dollar fiscal year (FY) 2023 omnibus package, H.R.2617, includes the omnibus’ Mental Health Access Improvement Act (S. 828/HR432), which would allow licensed marriage and family therapists and licensed professional counselors to be reimbursed for in-person Medicare, thereby giving greater access to mental health services for millions of Americans. Once the legislation passes the House, President Biden will be asked to sign, making it immediately enacted into law. Licensed Professional Counselors (LPCs) will be added to the list of Medicare providers.
• In line with curtailing many medical codes, CMS will discontinue the use of “virtual direct” supervision, which requires the supervising physician or practitioner to be “immediately available” to furnish assistance and direction during the service, to include the “virtual presence” of the supervising clinician through the use of real-time audio and video technology. (It is important to note the caveats for behavioral providers, wherein specified types of supervision are needed for MFTs and counselors to be reimbursed for telehealth.)
• CMS also hinted that consideration is being given by CMS to pay for new codes that describe caregiver behavioral management training in CY 2024 rulemaking.

CMS is adding 54 codes to the Category 3 telehealth list and modifying their expiration by the end of 2023, or 151 days after the PHE ends. Readers wanting a synopsis of the CMS PFS and other telehealth regulations are encouraged to visit the original press release in the CMS newsroom.

Telemental Health Laws by State & Profession

As states struggled to manage COVID-19, providers in many states were given flexibilities regarding telehealth regulations, such as licensure over state lines and reimbursement at the same rates as in-person care. While practice over state lines is set to stop In 2022, many state legislators agreed to continue requiring reimbursement for specific telehealth services, including behavioral telehealth. According to Manatt, these states have telehealth payment parity:

• Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Georgia, Kentucky, Minnesota, Missouri, Nevada, New Hampshire, New Mexico, Oklahoma, Oregon, Utah, Rhode Island, Virginia, Washington

These states also offer telehealth parity, but with limitations:

• Massachusetts (mental health only)
• Nebraska (certain mental health and substance use disorder services only)
• New Jersey (through December 31, 2023)
• Vermont (through January 1, 2026)
• West Virginia (established patients and patients in acute care facilities only)

The Center for Connected Health Policy (CCHP) has also published its annual State Legislation Roundup. 

Providing services as a licensed professional is typically governed independently by licensing boards in states, territories, and oftentimes, countries. In most instances, a licensee must first obtain a license in a single state, then independently meet the requirements of additional states. Barriers to telemental health laws by state include time delays, high licensure fees, detailed paperwork requirements, and travel required to take foreign state or country examinations.

Licensees can routinely face outdated requirements, requirements for obtaining signatures from former supervisors who may be retired or deceased, and requirements for providing old course syllabi to prove they meet education requirements. Potential licensees may also be required to take additional coursework or undergo additional supervision hours by a local licensee. The nation’s leading licensure portability and licensing compact activities are outlined below by professions offering behavioral services.

Medicine – Federation of State  Medical Boards

In April 2014, the Federation of State Medical Boards (FSMB) adopted the Model Policy for the Appropriate Use of Telemedicine Technologies in the Practices of Medicine, which laid the groundwork for shared documentation across states for medical licensure. While progress has been steady since 2014, the 2022 calendar year saw notable growth on numerous telemedicine fronts within the FSMB position papers. Documents related to telehealth regulations released in the latter half of 2022 include those listed below, which are available for download on this FSMB page.

Psychology – Association of State and Provincial Psychology Boards

Psychology’s regulatory association,  the Association of State and Provincial Psychology Boards (ASPPB), found yet greater acceptance of its model act, which offers a shared licensure model. The Psychology Interjurisdictional Compact (PSYPACT) is an interstate compact designed to facilitate the practice of telepsychology and the temporary in-person, face-to-face practice of psychology across state boundaries. At the time of this writing, the model act has been adopted by 34 states, is enacted as state law in 33 states, and is under review in another four states. Readers seeking more information can find it on this PsyPACT webpage.

Social Work – National Association of Social Workers & Supportive Associations

In July 2022, the Council of State Governments (CSG) — in partnership with ASWB, CSWA, and NASW, circulated their Compact draft and requested comments. Their webpage explains that “their interstate compact is a legal contract between two or more states/territories enabling practitioners (in this case, social workers) to practice in each other’s jurisdiction, once practitioners demonstrate they meet the compact requirements.” The CSG webpage offers several related FAQs to answer common questions.

Counseling -Council of State Governments 

The Council of State Governments is a nonpartisan organization serving all three branches, state, elected, and appointed officials. It is developing the Counseling Compact Commission, an interstate administrative body composed of one Delegate from each member state’s licensing board or agency. They are tasked with implementing the Compact’s provisions for professional counseling telehealth regulations over state lines.

The Compact Commission convened for the first time in October of 2022 to work toward adopting initial bylaws and rules to carry out the Compact. The Commission will also create an interstate licensure data system allowing for rapid verification of practitioners’ good standing and sharing of disciplinary information among member states. They anticipate that their activation process will require at least a year. Details can be found on Counseling Compact.

Marriage & Family Therapy – American Association of Marriage & Family Therapists

The May/June issue of the Family Therapy Magazine hosted an article outlining the efforts underway to help marriage and family therapists legally practice over state lines. It is entitled, Decisions, Decisions, Decisions: Considerations Regarding License Portability and Compacts. The article states, “All states have entered compacts in some form, and legislatures and governors are routinely asked to approve compacts. However, not all states have demonstrated acceptance of compacts in healthcare. For example, California and New York (two highly MFT-populated states) have not yet participated in ANY healthcare compacts.”

The article further explains, “There are also expenses in maintaining a compact. Therefore, AAMFT has traditionally viewed compacts as too expensive for the MFT profession to undertake (i.e., expensive fee for potential members to join the compact to sustain the compact).” This AAMFT webpage provides other notable resources for the reader who wants to know more about telemental health laws over state lines.

Other Telemental Health & Technology Advances

Approaching the end-of-year appropriations with a different focus, the American Psychological Association submitted a letter to Congress on December 12 urging funding for the Kids Online Safety Act (KOSA) in the end-of-year budget package to help improve young people’s well-being by transforming the digital environment. It was submitted by Senator Richard Blumenthal (D-CT) and Senator Marsha Blackburn (R-TN)  to empower youth and their parents to control children’s online experiences to protect their health and well-being.

Conclusion

Telemental health law is morphing to adapt to many public and legislative demands. Fueled by the increase in violence and the associated demand for greater mental health services in virtually all communities, Congress will continue to consider new solutions to ensure available care and to expand identification and prevention services for at-risk individuals, particularly in behavioral telehealth. The article above gives the reader a preview of the issues most likely to get telemental health and behavioral telehealth legislative support for telehealth and technology in 2023.

As 2022 comes to a close, the Telehealth.org team thanks you for making our behavioral telehealth news part of your weekly routine, supporting our professional development training institute, BCTP-I, II, and III telehealth certificates, our affiliates, and advertisers. If you haven’t yet registered for our specialty topic or state-based telehealth newsletters, you may want to take a moment to do so now. You may also note that the Telebehavioral Health Institute (TBHI) has formally changed its name to Telehealth.org. We hope to bring you another year of exciting telehealth news and professional growth opportunities in 2023.